PER: HON’BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)

1. The present complaint has been filed by the Complainants before this commission alleging deficiency of service on the part of Opposite Party and has prayed the following reliefs:

a) Direct the opposite party/respondent to hand over the peaceful vacant possession of booked plot/Unit i.e. plot bearing No. L-370, measuring 250 sq. yds. (209.03 metre) at TDI City, Village Kundli, Sonepat, Haryana;

b) Direct the opposite party/respondent to pay the interest on the paid amount @18% p.a. from the date of expiry of delivery of possession till the date of handing over the actual possession of the aforesaid booked plot/unit to the complainants, as compensation for delay in handing over the possession of the booked plot/unit;

c) Direct the opposite party/respondent that if due to any reason the possession cannot be handed over to the complainant, then in that eventuality the respondent would be directed to pay Rs.24,85,810/- (Rupees twentyfour lakhs eighty-five thousand eight hundred ten only) along with interest @24% from the date of making payment till its realization;

d) Direct the respondent to pay a sum of Rs.8,00,000/- (Rupees eight lacs only) to the complainant towards the damages for deficiency in service, unfair trade practice, mal practices and for physical and mental harassment due to deficient service rendered and unfair trade practice by the opposite party.

e) Direct the opposite party to pay a sum of Rs.2,00,000/- (Rupees two lac only) towards the cost of present complaint and other legal expenses incurred by the Complainant.

f) Pass any other or further order(s)/ relief (s) which this Hon'ble Commission deems fit and proper in the facts and circumstances of the case, in favour of the Complainant and against the O.P.”

2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked one plot bearing No. L-370, measuring 250 sq. yds. (209.03 meter) in the upcoming project ‘TDI City’ at Kundli, Sonepat, Haryana of the Opposite Party at a basic price of Rs. 7750/- per sq. yds. amounting to total basic sale price of Rs. 19,37,500/- exclusive of TDS and other charges. Further, Builder Buyer Agreement dated 18.06.2010 was signed and executed between the parties. Till date, the Complainant has paid a sum of Rs. 24,85,810/- to the Opposite Party which has been duly acknowledged by the Opposite Party by issuing separate receipts. As per Agreement, the Complainant was supposed to raise construction within three years from the date of intimation to take possession by the Opposite Party but no offer of possession has been offered to the Complainant till date. Aggrieved by this, the Complainant sent legal notice dated 28.08.2017 to the Opposite Party seeking upon handover the possession of the plot in terms of agreement dated 28.06.2010 or in alternative refund the amount of Rs.24,85,810/- along with interest @24% p.a. but was of no avail.

3. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party contended that the Complainant is not consumer under the Consumer Protection Act, 1986 as they had invested the money in the said project to earn profit, which amounts to commercial purpose. The counsel for the Opposite Party further submitted that the Complainant himself defaulted in making timely payments as per the payment schedule.

4. The Counsel lastly contended that the Complainant has no cause of action to file the present complaint and also failed to establish any deficiency on the part of Opposite Party. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.

5. The Complainant had filed the Rejoinder rebutting the written statement filed by the Opposite Party. The Complainant has filed the Evidence by way of Affidavit in order to prove his averments on record. Further, the Opposite Party was also directed vide order dated 02.03.2020 to file Evidence by way of Affidavit in order to prove his averments on record, however, the Opposite Party has failed to file the same till date. Therefore, contentions raised by Opposite Party through the written statement cannot be taken on record. Also, the written arguments have not been filed by the contesting parties till date.

6. Be that as it may, we have perused the material available on record and heard the counsel for both the Complainant.

7. The fact that the Complainant had booked plot bearing no. L-370 with the Opposite Party is evident from the Plot Buyer’s Agreement dated 28.06.2010 executed between the parties (Annexure 3 of the Complaint). Payment to the extent of Rs. 24,85,810/- has been made by the Complainant to the Opposite Party is also clear from the receipts issued by the opposite party annexed with the present Complaint (Annexure-4 Colly).

8. The main question for consideration is whether the Opposite Party is deficient in providing its services to the Complainant. The expression Deficiency of Service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, [LQ/SC/2020/615] wherein it has been discussed as follows:

“23. ……. The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:

(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service

24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.”

9. In the present case, the Complainant contended that Opposite Party assured him to hand over the possession of the said plot by the end of year 2009. However, we failed to find any provision regarding as to time under which the Opposite Party has to handover the possession of the plot in question to the Complainant. To resolve the said issue, we deem it appropriate to refer to First Appeal no. 348/2016 tiled as “Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors.” decided on 10.05.2019, wherein the Hon’ble NCDRC has held as under:

“……under Section 46 of the Indian Contract Act, 1872, the following provision is there:

46.Time for performance of promise, where no application is to be made and no time is specified - Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.

Explanation - The question "what is a reasonable time" is, in each particular case, a question of fact"

19. from the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved.”

10. Relying on the above settled law, if the possession is delivered beyond the 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved. However, in the present case, it is clear that the Opposite Party failed to handover the possession of the plot in question even after the passing of more than Eighteen years from the date of advance booking.

11. Further, the Complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money which they have spent in order to purchase the property in question. [Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442) [LQ/SC/2018/320] .

12. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs. 24,85,810/- along with simple interest as per the following arrangement:

A. An interest @ 6% p.a. (as per clause (c) of the Advance Registration Form) calculated from the date on which each installment/payment was received by the Opposite Party till 15.02.2024 (being the date of the present judgment);

B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 15.04.2024;

C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 15.04.2024, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.

13. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:

A. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainant; and

B. The litigation cost to the extent of Rs. 50,000/-.

14. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

15. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

16. File be consigned to record room along with a copy of this Judgment.